Scott v. Novartis Pharmaceuticals Corporation et al

REPLY BRIEF re MOTION to Strike 105 Deposition,,,,,,, 106 Deposition,, 104 Notice

N.D. Ga.October 6, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION VERNON SCOTT, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION and CONRAD McCRARY, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:14-cv-04154-ELR-RGV DEFENDANTS NOVARTIS PHARMACEUTICALS CORPORATION’S AND CONRAD McCRARY’S CONSOLIDATED REPLY BRIEF IN SUPPORT OF THEIR MOTIONS TO STRIKE Defendants Novartis Pharmaceuticals Corporation (“Novartis”) and Conrad McCrary (“McCrary,” collectively “Defendants”) hereby respectfully submit this Consolidated Reply in Support of Defendants’ Motion to Strike Plaintiffs’ Notice of Objection to Pages 41 through 48 of Defendants’ Summary Judgment Brief (“Defendants’ Motion to Strike Plaintiff’s Notice of Objection”) [D.E. 112], Defendants’ Motion to Strike Plaintiff’s Untimely Filed Docket Entries 102 through 107 and All Accompanying Exhibits (“Defendants’ Motion to Strike Plaintiff’s Untimely Filed Docket Entries”) [D.E. 111], and Defendants’ Motion to Strike, or Alternatively, Exclude from Consideration the Unsworn Declaration of Roy Frank Wiley [D.E. 110] (“Defendants’ Motion to Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 1 of 17 2 Exclude” collectively “Defendants’ Motion to Strike”). I. PLAINTIFF’S FAILURE TO RESPOND TO DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S NOTICE OF OBJECTION CONSTITUTES ABANDONMENT. Plaintiff failed to assert any response in opposition to Defendants’ arguments regarding the impropriety of Plaintiffs’ Notice of Objection and thus concedes the validity of Defendants’ Motion to Strike Plaintiff’s Notice of Objection. Plaintiff purports to provide a consolidated response in opposition to Defendants’ Motions to Strike; however, Plaintiff does not set forth any responsive arguments substantiating his erroneous claim that Defendants exceeded the forty-page limit set by this Court. [See generally D.E. 119]. It is well settled that a party’s failure to respond in opposition to an argument or motion constitutes abandonment. Hammond v. Gordon Cnty., 316 F. Supp. 2d 1262, 1280 (N.D. Ga. 2002) (Plaintiffs have failed to respond to Defendant[’s] … arguments with respect to Plaintiffs’ state law claims. Plaintiffs therefore have abandoned those claims, and Defendants are entitled to summary judgment on those claims); see also Bute v. Schuller Int’l, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998) (“Because plaintiff has failed to respond to this argument or otherwise address this claim, the Court deems it abandoned.”); see also Fils v. City of Aventura, 647 F.3d 1272, 1295 (11th Cir. 2011) (failure to respond to argument constitutes abandonment of claim). In light of the foregoing, Defendants assert that their Motion to Strike Plaintiff’s Notice of Objection should be treated as unopposed and request that this Court grant the same. Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 2 of 17 3 II. PLAINTIFF’S FAILURE TO ADHERE TO THE EXPLICIT DIRECTIVES OF THIS COURT’S ORDER IS SANCTIONABLE CONDUCT THAT CANNOT BE CONSIDERED EXCUSABLE NEGLECT. A. This Court Should Consider the Merits of Defendants’ Motion to Strike Plaintiff’s Untimely Filed Docket Entries. Defendants’ decision to style their motion as a motion to strike neither undermines the substantive merits of the motion nor justifies Plaintiff’s assertion that the Motion to Strike Plaintiff’s Untimely Filed Docket entries should be denied. Ironically, Plaintiff is advocating Defendants’ strict adherence to procedural dictates while at the same time asking this Court to overlook his failure to abide by the clear directives of this Court’s Order. To that end, Plaintiff states that “Defendants’ Motion to Strike Docket Entries 102-107 should be denied because it is procedurally improper.” [D.E. 119, p. 2]. Plaintiff’s argument, however, is inaccurate. As an initial matter, Defendants did not move to strike Plaintiff’s untimely pleadings based on Federal Rule of Civil Procedure 12(f). Thus, Plaintiff’s discussion of the procedural impropriety of Federal Rule of Civil Procedure 12(f), to the facts at bar, is irrelevant. Still, Plaintiff’s argument regarding denial fails for several reasons. Indeed, case law demonstrates that “courts have held that the preferred method of objecting to the admissibility of an affidavit submitted in support of, or opposition to, a motion for summary judgment is a notice of objection to the proffered materials.” Sturdivant v. City of Atlanta, No. 1:11- Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 3 of 17 4 cv-2310-RLY-JSA 2014 U.S. Dist. LEXIS 186658, *19 (N.D. Ga. Feb. 7, 2014). However, contrary to Plaintiff’s assertion, courts assess and decide the merits of motions to strike despite the form for several reasons. First, courts routinely treat motions to strike as notices of objection. Hawk v. Atlanta Peach Movers, Inc., No. 1:10-cv-0239-JFK, 2011 U.S. Dist. LEXIS 43724, at *3-4 (N.D. Ga. Apr. 21, 2011)(considering motion to strike as a notice of objection); Carroll v. Tavern Corp., Nos. 1:08- CV-2514-TWT-JFK, 1:08-CV-2554-TWT-JFK, 2011 U.S. Dist. LEXIS 30126, at *44-45 (N.D. Ga. Feb. 9, 2011) (denying motion to strike but considering motion as objections); Chavez v. Credit Nation Auto Sales, Inc., No 1:13-cv-00312-WSD-JCF, 2013 U.S. Dist. LEXIS 117020, *8-9 (N.D. Ga. Apr. 29, 2013). Second, this District has held that the plain language of Federal Rule of Evidence 103(a) implicitly recognizes that a motion to strike evidence is procedurally proper. Corey Airport Servs., Inc. v. City of Atlanta, 632 F.Supp.2d 1246, 1267-68 (N.D. Ga. 2008). Third, the Eleventh Circuit has also opined that a court has discretion to exclude an affidavit from consideration after a party files a motion to strike without considering its procedural propriety because “it is in the interests of justice and efficiency.” Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) (“We find no abuse of discretion in the district court’s decision to exclude Keller’s affidavit.”); see also Spratlin Outdoor Media, Inc. v. City of Douglasville, No. 1:04-cv-3444-JEC, 2006 U.S. Dist. LEXIS 20797, *13 (N.D. Ga. Mar. 27, 2006) (stating that “[t]he parties should have filed a notice of objection to the challenged testimony not a motion to strike…nevertheless, in the interests of efficiency, the Court will overlook this procedural error and proceed to assess the admissibility of the challenged affidavits.”). Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 4 of 17 5 Most importantly, like the instant context, “some courts have concluded that they have the inherent authority to strike an affidavit as a sanction for misconduct or failing to comply with court rules or orders.” Robinson v. City of Atlanta, No. 1:10-cv-02036-AT-AJB, 2012 U.S. Dist. LEXIS 191802, *9 (July 27, 2012) (citing English v. CSA Equip. Co. LLC, No. 05-0312, 2006 U.S. Dist. LEXIS 59718, 2006 WL 2456030, at *2 n. 5 (S.D. Ala. Aug. 21, 2006) (noting that “Court may strike an affidavit or brief as a sanction for noncompliance with court orders, violations of applicable rules, or other misconduct.”). In light of the foregoing, Defendants request, in the interest of justice and efficiency that this Court treat Defendants Motion to Strike Plaintiff’s Untimely Filed Docket Entries as a Notice of Objection and strike the untimely filed docket entries based on Plaintiff’s failure to adhere to this Court’s explicit directive. B. Plaintiff’s Failure to Adhere to this Court’s Order Warrants the Exclusion of His Untimely Filed Docket Entries. Plaintiff’s attempt to characterize his contemptuous conduct as “excusable neglect” completely ignores the plain language of the Court’s Order and further disregards significant case law regarding a party’s failure to adhere to an Order. On August 16, 2016, 116 days after Defendants’ filed their motion for Summary Judgment, and 34 days after this Court’s appointed deadline for Plaintiff’s responsive brief, this Court graciously extended a final opportunity to Plaintiff to file his response in opposition to Defendants’ Motion for Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 5 of 17 6 Summary Judgment. [D.E. 96]. This Court allotted Plaintiff approximately 48 hours to prepare and file his responsive pleading in the form it existed on July 14, 2016. [Id.]. This Court further warned that “if Scott fails to file a response by noon on August 18, 2016, defendants’ motion for summary judgment will be deemed unopposed.” [D.E. 96]. Still, Plaintiff filed six docket entries, which largely form the evidentiary basis of his response, after the Court’s noon deadline notwithstanding this Court’s explicit warning and the corresponding consequences of his non-compliance. Plaintiff concedes that he did not comply with this Court’s Order. Yet, his only excuse for his failure is “Plaintiff’s counsel simply underestimated the time to gather, label, scan, re-scan, and electronically file the exhibits…” [D.E. 119]. Notwithstanding Plaintiff’s admitted disregard for the clear consequences of his non-compliance he contends that his conduct constitutes “excusable neglect.” Plaintiff’s failure to comply with an Order setting a deadline, however, is not excusable neglect. Sibson v. Midland Mortg. Co. (In re Sibson), 235 B.R. 672, 677 (Bankr. M.D. Fla. 1999) (“the failure to take action in the face of a clear order from the Court directing action fails to constitute excusable neglect …”); see also United States v. Ferguson, No. 3:07-cv-631J-34TEM, 2015 U.S. Dist. LEXIS 3805, *1 (M.D. Fla. Jan. 13, 2015) (finding that a party’s failure to comply with Court deadlines does not constitute excusable neglect). Instead, Plaintiff’s conduct constitutes civil contempt. F.T.C. v. Leshin, 618 F.3d 1221, 1232 (11th Cir. 2010) (the only element of a civil contempt charge is non-compliance with a court order). Plaintiff was allotted 48 hours to prepare and file his responsive pleading yet he failed to timely file his supporting documents, notwithstanding the Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 6 of 17 7 risk of this Court’s exclusion of his brief. Martini v. A. Finkl & Sons Co., 955 F. Supp. 905, 907 (N.D. Ill. 1997) (attorney negligence in failing to timely file complaint did not constitute excusable neglect). Plaintiff did not take any steps to safeguard his compliance. Plaintiff attempts to convince this Court that despite his diligence he was unable to timely file his response to Defendants’ Motion for Summary Judgment; yet, the record demonstrates that he began filing in the last ten minutes of the 48 hour window provided by this Court. [See D.E. 97 (filed at 11:53 a.m.)]. Plaintiff suggests his temporal mismanagement is excusable; however, on more than seven (7) occasions Plaintiff waited until the last minute to file significant pleadings.1 In fact, Plaintiff has missed five (5) deadlines in this matter.2 Plaintiff has repeatedly discounted the importance of meeting court ordered deadlines and exploited this Court’s leniency to avoid the consequence. See Young V. City Of Palm Bay Fla., 358 F.3d 849, 863-64 (11th Cir. 2004) (“[d]eadlines are not meant to be aspirational; counsel must not treat the goodwill of the court as a sign that, as long as counsel tries to act, he has carte blanche permission to perform when he desires.”). Unsurprisingly, Plaintiff’s response in opposition to Defendants’ Motions to Strike is rife with the same inherent contradictions and misrepresentations that have marked Plaintiff’s conduct this entire litigation. 1 See D.E. 79 filed at 11:58 p.m., D.E. 82 filed at 11:59 p.m., D.E. 86 filed at 11:58 p.m., D.E. 87 filed at 11:58 p.m., D.E. 116 filed at 11:28 p.m., D.E. 119 filed at 11:59 p.m., and D.E. 120 filed at 11:58 p.m. 2 See D.E. 13, 81, 84, 94, and 95. Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 7 of 17 8 However, “[t]he law is clear in this Circuit that [a] district court need not tolerate defiance of reasonable orders.” Muhammad v. HSBC Bank USA, NA, No. 13-0617-WS-M, 2014 U.S. Dist. LEXIS 108055, at *25 (S.D. Ala. Aug. 6, 2014) (citing Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape Service, Inc., 556 F.3d 1232, 1240 (11th Cir. 2009)). As previously stated, this Court has inherent authority to strike Plaintiff’s untimely filings. Robinson, 2012 U.S. Dist. LEXIS 191802, *9 (noting that “Court may strike an affidavit or brief as a sanction for noncompliance with court orders, violations of applicable rules, or other misconduct.”). In fact, Rule 16(f) authorizes a court to impose sanctions “if a party or its attorney: . . . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f). Sanctions under Rule 16(f) are “designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). Plaintiff’s repeated “administrative delays” are paradigmatic of conduct justifying the imposition of sanctions. Plaintiff cannot reasonably claim excusable neglect. Accordingly, this Court should exclude docket entries 102 through 107 from its consideration. III. THIS COURT SHOULD EXCLUDE THE DECLARATION OF FRANK WILEY FROM ITS CONSIDERATION BECAUSE IT DOES NOT COMPLY WITH FEDERAL RULE OF CIVIL PROCEDURE 56 OR THE MANDATES OF 28 U.S.C. § 1746. This Court should exclude the declaration of Frank Wiley from its consideration of Plaintiff’s Response in Opposition to Defendants’ Motion for Summary Judgment because it is unsigned, Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 8 of 17 9 unsworn, and replete with conclusory statements. A. Mr. Wiley’s Failure to Sign His Alleged Declaration or Set Forth His Statements “Under the Penalty of Perjury” Violates 28 U.S.C. § 1746. Mr. Wiley’s declaration should not be considered by this Court because it does not comply with the requirements of 28 U.S.C. § 1746. Plaintiff summarily contends that “these statements should not be struck because this is Wiley’s testimony under the penalty of perjury…” [D.E. 119 p. 13]. Notwithstanding Plaintiff’s contention, the declaration does not include any language suggesting Mr. Wiley’s intent to provide his testimony under oath and under the penalty of perjury. As an initial matter, the declaration is not signed. The absence of Mr. Wiley’s signature calls the veracity of every statement therein into question. Similarly, the lack of signature renders the alleged date of Mr. Wiley’s purported oath meaningless. In Orr v. Orbis Corp., No. 1:07-CV-2653- TWT-SSC, 2010 U.S. Dist. LEXIS 86990, at *7-8 (N.D. Ga. July 30, 2010), the court held that plaintiff could not rely upon two unsigned and undated declarations to defeat summary judgment. Id. The Orr Court reasoned “the [d]eclarations …are improper because they are not dated or signed, as required by 28 U.S.C. § 1746…[and] [b]ecause the [d]eclarations are not dated or signed, the court will not consider them in addressing Defendants’ motion or Plaintiff’s response, and therefore Defendants’ objections to these Declarations are sustained.” Id. (citing Kaiser v. Shipman, No. 3:07cv229/LAC/EMT, 2009 U.S. Dist. LEXIS 67596, at *32 (N.D. Fla. Aug. 4, 2009)); see also Nu Image, Inc. v. Doe, No. 2:11-cv-545-FtM-29SPC, 2012 U.S. Dist. LEXIS 72541, at *15 (M.D. Fla. Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 9 of 17 10 Apr. 9, 2012) (“the statute expressly requires that in order for a declaration to substitute for an affidavit, the declaration must be given under penalty of perjury and dated.”). Moreover, Mr. Wiley’s declaration does not include a statement that is identical to or substantially similar to the exemplary clause of 28 U.S.C. § 1746. See In re Muscatell, 106 B.R. 307, 309 (Bankr. M.D. Fla. 1989) (“28 U.S.C. § 1746 does not mandate strict compliance with the exemplary clause provided in the statute [however] the statute clearly states the clause needs to be in substantially the same form as the one in the statute.”); see also Bosch v. Title Max, Inc., No. 03-AR- 0463-S, 2004 U.S. Dist. LEXIS 30162, at *2-4 (N.D. Ala. Aug. 25, 2004) (excluding multiple affidavits from the court’s consideration reasoning …[t]he purported affidavits do not use any of the language suggested by the Code, and in no way evince any intent by the affiants to present their testimony under oath, as would be required in a court.”). And the declaration does not include any language that the witness is asserting the statements “under the penalty of perjury.” Nu Image, Inc., 2012 U.S. Dist. LEXIS 72541, at *15 (“the statute expressly requires that in order for a declaration to substitute for an affidavit, the declaration must be given under penalty of perjury and dated”). In light of the foregoing significant deficiencies, the declaration of Frank Wiley should be excluded from this Court’s consideration. See Dudley v. City of Monroeville, Ala., 446 Fed. App’x 204, 207 (11th Cir. 2011) (“Unsworn statements do not meet the requirements of Rule 56, so the district court could not—and properly did not—rely on the content of the [unsworn] statement.”) (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th Cir. 2003)). Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 10 of 17 11 B. The Statements Included in Frank Wiley’s Declaration Are Not Based on His Personal Knowledge. Federal Rule of Civil procedure 56(c)(4) provides that affidavits supporting and opposing motions for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). An affidavit has no probative value and must be stricken when it contains conclusions rather than statements of fact, or when it is not based on personal knowledge. See Benton--Volvo--Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 139 (5th Cir. 1973); see also Johnson v. Scotty’s, Inc., 119 F.Supp.2d 1276, 1281 (M.D. Fla. 2000) (“an affidavit must be stricken if it is a conclusory argument rather than a statement of fact, or when the affidavit is not based on personal knowledge.”). Plaintiff attempts to convince this Court of the admissibility of Mr. Wiley’s declaration by summarily stating that “[t]his statement is completely admissible because it is based on his first-hand knowledge, is not conclusory, and does not contain improper testimony.” [D.E. 119, pp. 1-16]. Plaintiff’s repetition of his declaration, however, does not make it so. Mr. Wiley’s statements are objectively speculative and conclusory. For example, Mr. Wiley’s characterization of McCrary as the “ringleader” and puppet master in paragraph 7 does not set forth any specific facts or specific observations that give rise to Mr. Wiley’s belief. [D.E. 101 ¶ 7]. This District has held that vague statements about the general state of affairs are not helpful to the court’s Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 11 of 17 12 determination of the issues before it. Reeves v. Thigpen, 879 F. Supp. 1153, 1166 (M.D. Ala. 1995) (“This impression about the general state of affairs at Staton is too vague to be of use to this court in considering the issues raised in the Motion for Summary Judgment.”). Similarly, Mr. Wiley fails to set forth any specific observable facts that substantiate his statements in paragraphs 16 and 21. In Paragraph 16, Mr. Wiley neither identifies a single employee who resigned from Novartis to join a competitor nor identifies the salary differences or benefit advantages offered by any competitor. See [D.E. 101 ¶ 16]. The Eleventh Circuit has clearly stated that “[a]ffidavits consisting of ‘conclusory allegations without specific supporting facts have no probative value.’” Leigh v. Warner Brothers, Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). Similarly, in paragraph 21, Mr. Wiley fails to provide a single example demonstrating how “Conrad McCrary took issue with Black people and even some women” or any specific example showing “you had to fit in a specific mold and be a member of his ‘in-crowd’ to be treated fairly and respect.” [D.E. 101 ¶ 21]. Mr. Wiley’s statements are purely speculative and such speculation is not probative of any fact. Reeves, 879 F. Supp. at 1166 (“Her speculation about their intent is not helpful to this court’s determination of the issues before it.”); see also Seal Shield, LLC v. Rhino Grp., Inc., No. 6:12-cv- 1245-Orl-28TBS, 2012 U.S. Dist. LEXIS 181023, at *5 (M.D. Fla. Dec. 21, 2012) (citing Argo v. Blue Cross & Blue Shield, 452 F.3d 1193, 1200 (10th Cir. 2006) (holding affidavit was inadmissible where the witness lacked personal knowledge, and noting that statements of mere belief in an affidavit must be disregarded). Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 12 of 17 13 The conspiratorial allegations of paragraphs 23 and 26 also fail to set forth any specific facts or first-hand knowledge substantiating Mr. Wiley’s testimony. [D.E. 101, ¶¶ 23, 26]; Seal Shield, LLC, 2012 U.S. Dist. LEXIS 181023, at *9 (excluding statements of an affidavit because witness “failed to set forth any firsthand knowledge upon which he bases his testimony”). If McCrary did in fact “disguise” his actions or only “stood in the shadows” it is difficult to conceive how such conduct would have been observed by Mr. Wiley. Great Am. Ins. Co. v. Moye, 2010 U.S. Dist. LEXIS 83320, *5-6 (M.D. Fla. July 19, 2010) (with respect to personal knowledge, “an affidavit is inadmissible if a witness could not have actually perceived or observed that to which they testify.”). And Mr. Wiley’s failure to identify a single specific discriminatory action in paragraphs 24 and 25 diminishes their probative value. Leigh, 212 F.3d at 1217. Based on the foregoing, Mr. Wiley’s declaration does not comport with Rule 56(c) and should be excluded from this Court’s consideration. C. The Filing of Docket Entry 103-4 Does Not Correct the Deficiencies of the Declaration of Frank Wiley. Contrary to Plaintiff’s assertion, Plaintiff’s untimely filing of Docket Entry 103-4 does not correct the technical or substantive deficiencies of the declaration of Frank Wiley. Moreover, Plaintiff’s untimely filing raises significant questions regarding the alleged date of Mr. Wiley’s oath. Plaintiff alleges, in a footnote, that the filing of docket entry 103-4 corrects the technical deficiencies of docket entry 101. [D.E. 119, p. 11, fn. 7]. Notably, docket entry 103-4 includes a Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 13 of 17 14 separate undated signature page for Mr. Wiley, executed “under the risk of the penalty of perjury.” [D.E. 103-4, p. 10]. Plaintiff’s corrective filing, fifteen minutes after the Court’s noon deadline, raises several significant issues, but fails to correct the problems which Plaintiff implicitly concedes invalidate docket entry 101. First, as previously set forth, in Section II herein, Plaintiff should not be allowed to rely on materials filed after the Court’s noon deadline. Second, Mr. Wiley’s undated signature cannot correct conclusory and speculative statements, as discussed in Section III.B herein. Third, the structure of the declaration raises questions regarding the alleged date of Frank Wiley’s oath. Notably, Frank Wiley’s signature page is the only declaration signature page submitted by Plaintiff that did not include a date on the signature block. This inconsistency is further exacerbated by the fact that Plaintiff represented to this Court and Defense counsel, on July 15, 2016, that he had not received the signed declarations of the two witnesses, presumably Ann Marks and Frank Wiley, by his July 13, 2016 filing deadline. See [D.E. 94-1]. Pursuant to Plaintiff, the delay in the receipt of the executed declarations gave rise to his request for a one-day extension. [Id.]. Frank Wiley’s declaration, however, is dated July 12, 2016. [D.E. 103-4, p. 2]. That date, however, appears in the first paragraph of the declaration not the signature page. [Id.]. Thus, the Court cannot conclude with certainty the date that Frank Wiley swore his oath. Yorko v. State, 672 S.W.2d 3, 4-5 (Tex. App. 1983) (“An affidavit that does not show when the affiant swore to it could not show that he committed perjury.”). Moreover, this Court cannot conclude with certainty that the declaration was in fact executed by July 14, 2016 in accordance with Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 14 of 17 15 this Court’s Order. 3 CONCLUSION In light of the foregoing, Defendants respectfully request that this Court grant Defendants’ Motions to Strike and appropriately sanction Plaintiff for his failure to comply with this Court’s Order. Respectfully submitted this 6th day of October, 2016. /s/ David W. Long-Daniels David Long-Daniels, Esq. Georgia Bar No. 141916 Natasha L. Wilson, Esq. Georgia Bar No. 371233 Greenberg Traurig, LLP Terminus 200, Suite 3333 Piedmont Road, NE Atlanta, GA 30305 Tel: (678) 553-2182 Fax: (678) 553-2183 Attorneys for Defendants CERTIFICATE OF COMPLIANCE WITH L.R. 5.1C 3 Notably, Plaintiff filed his own declaration in support of his Response in Opposition to Defendants’ Motion for Summary Judgment notwithstanding the fact that it is dated on August 18, 2016 in violation of this Court’s Order. See [D.E. 103-1]. Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 15 of 17 16 I HEREBY CERTIFY that the foregoing document was prepared in Times New Roman, 14- point font, as approved by Local Rule 5.1C. /s/ David W. Long-Daniels Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 16 of 17 17 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION VERNON SCOTT, Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION and CONRAD McCRARY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:14-cv-04154-ELR-RGV CERTIFICATE OF SERVICE This is to certify that I have filed a true and correct copy of the foregoing document with the Clerk of the Court using the CM/ECF system, which will automatically generate notice of filing and constitute service upon the following counsel of record: Rakesh N. Parekh PAREKH LAW, LLC Post Office Box 250654 Atlanta, Georgia 30327 This 6th day of October, 2016. /s/ David W. Long-Daniels ATL 21486961v4 Case 1:14-cv-04154-ELR-RGV Document 122 Filed 10/06/16 Page 17 of 17